Back Page: Battle of wills over judicial appointments process

By
Canadian Lawyer

08 Jan 2007

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The era of Canadian judicial activism started with a bang on April 17, 1982, with the enactment of the Canadian Charter of Rights and Freedoms and it ended with a whimper on Nov. 9, 2006. That was the day the “Court Party” — Canada’s clique of activist judges, lawyers, law professors, and journalists who see the Charter as a tool for their political ambitions — started playing defence, after nearly a quarter-century of offense.

On Nov. 9, Vic Toews, the new federal justice minister, gave a media interview proposing changes to the judicial advisory committees that help him pick judges. In addition to some procedural changes, Toews wants to act on a recommendation that Parliament’s all-party Justice Committee came up with under the Liberals. That is to add lay members to the seven-person provincial judicial advisory committees. Toews suggested a law enforcement representative — not a bad way to leaven committees dominated by lawyers.

This is hardly radical stuff. The committees were created in the 1980s to give advice to the Justice minister. In the end, he’s the decision-maker and they’re there to serve him. He can take advice from whomever he chooses, and could ignore the committees altogether if he so chose. To add a policeman to a panel giving non-binding advice is not a revolution. Though it might cause a few of Canada’s more absurdly lenient lawyers to be kept off the bench. But the Court Party still blew a gasket.

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Beverley McLachlin, the chief justice of Canada, issued a rare press release on behalf of the Canadian Judicial Council denouncing Toews’ changes, calling on him to immediately consult with her and the usual Court Party suspects — including the highly politicized Canadian Bar Association and what she called “other interested parties.”

McLachlin didn’t explain her specific objection in the CJC’s press release, but it’s certain it wasn’t the staggered terms for committee members. That leaves the obvious: the Court Party just doesn’t think cops can be as “independent” in selecting judges as criminal defence lawyers are. Or, to quote from Justice McLachlin’s release, “We believe this [consultation] is necessary to protect the interests of all Canadians in an independent advisory process for judicial appointments.” Do you think that the CJC would have objected had Toews proposed a representative from the John Howard Society?

By the way, just how independent is the current advisory process that the Court Party defends? A study published last year by CanWest News Service showed that nearly 60 per cent of all judicial appointments since 2000 were Liberal Party donors — a staggering number that would be statistically impossible if the current system were truly independent.

The problem with the committees isn’t that they are too Liberal or too Tory. It’s that, Liberal or Tory, the committees buy into the Court Party’s philosophy of judicial activism. Policemen — even Liberal policemen — generally don’t come from that judge-worshipping, Parliament-ignoring culture. Adding a policeman to an appointments committee is intellectual diversity, not a pointless nominal diversity. What the Court Party fears is dissent.

It’s right there in the Court Party’s press release. They called on “the government to maintain the status quo and refrain from implementing the changes in order to allow meaningful consultation to take place.”

How poetic. The same Court Party that has, by fiat, destroyed every status quo it ever encountered, now wants its own status quo protected. There was no consultation when the Court Party changed Canada’s status quo on prisoners’ voting rights, the age of sexual consent, Quebec’s divisibility from Canada, etc., etc. But after 25 years, the Charter activists have become the status quo and the Justice minister has become the agent of change.

The Court Party saw the warning shots earlier this fall, when Toews announced he would de-fund the Court Challenges Program and the Law Commission of Canada. That elicited squawking from the Court Party because those programs incubated their farm team. However, changing the rules about who gets to actually be on the courts is more terrifying to the Court Party.

History shows it would be foolish to bet against the Court Party. But they’re used to fighting on the legal offensive, and they’ve never truly been on the defensive before.

A day after Justice McLachlin issued her press release, Toews released his own. He announced that he’s “moving forward with changes.” Not a word about consultations, or the judges’ press release. It looks like 2007 will not be a boring year.

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